Meriwether v. Morrison

• Decision Date: 28 September 1880
• Citation: 78 Ky. 572
• Parties: Meriwether v. Morrison.
• Court: Kentucky Court of Appeals

78 Ky. 572

Meriwether v. Morrison.

Court of Appeals of Kentucky.

September 28, 1880.

APPEAL FROM TODD CIRCUIT COURT.

BEN. T. PERKINS, JR., FOR APPELLANT.

H. G. PETRIE AND A. DUVALL FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

This action was instituted by appellee to recover the possession of two promissory notes executed by A. M. Barker to W. D. Meriwether, sr., and assigned to appellee. It is insisted by counsel for appellant that the evidence does not support the verdict. A disposition of this question in favor of appellee will render it unnecessary to consider the other assignments of error, as they are principally in reference to the instructions, which are unquestionably correct if the evidence is sufficient.

The undisputed facts are: Appellee, a cousin of W. D. Meriwether, sr., lived with him as a member of his family for several years immediately preceding his death. W. D. Meriwether, sr., was quite wealthy; frequently said he intended to provide for appellee, and, after the assignment of these notes to her, repeatedly stated that he had made provision for her by giving her the Barker notes. The indorsements upon the notes were made some months prior to the death of Meriwether, sr., and read: "I transfer the within note as a gift to Miss Agnes Morrison."

The statement of appellee in reference to the assignment is: "A few weeks before he died Mr. Meriwether called me to his bed and told me he had given me two notes on Alex. Barker, and said he had placed them in the hands of Dr. Will. Meriwether, jr. (appellant), for me. . . . While we were talking Dr. Will. Meriwether came into the room and W. D. Meriwether, sr., asked him if the notes he had given to me were fixed so that I would have no difficulty about them, and he said they were. On another occasion, in the presence of Miss Fannie King and Miss Raine, he told me that he had placed the notes in the hands of Dr. Will. Meriwether for me."

On direct examination, and after stating that he wrote the assignments on the notes at the dictation of Meriwether, sr., appellant says: "He then handed them to me and told me to put them back in the desk, and to give them to plaintiff after his death. I put them back in his desk, locked it, gave him the key, and saw them no more until after said Meriwether's death; and until after his death I had no control over the notes."

On cross-examination he stated, as set forth in the bill of exceptions, that "he lived with said Meriwether; was the only male member of his family; said Meriwether was a bachelor, quite wealthy. Cannot remember what language W. D. Meriwether used at the time he handed me the notes, but the substance was to put them away. Cannot remember that he used the word desk or pocket-book, but know that he did put the notes in his desk and had them no more until after his death. The desk was in the large room, and in the latter part of his life the key thereto was kept in the closet, and witness kept the key to the closet door, and went to the closet to get clothes for the old man."

It is also in evidence that W. D. Meriwether, sr., died testate, and that there is no provision in his will for appellee, and that no mention is made of the Barker notes, or any other notes.

Upon this evidence, the jury were authorized to find that the notes were placed in the hands of appellant in trust, to be delivered to appellee on the death of W. D. Meriwether,...